What has been happening in the last 7 years since 2015 in Turkey reveals that a permanent authoritarian regime is sought after. Judicial harassment is employed to build this authoritarian regime while the Anti-Terrorism Law No. 3713 (ATL) is being instrumentalized under the disguise of “combatting terrorism” as its most significant apparatus.
The democratic resolution process for the “Kurdish issue,” the most important problem in Turkey, had been launched in 2013 but ended in failure in 2015. When it became clear that this process would not advance, various special laws and decisions were put into practice. The most prominent one among these was the establishment of special courts that would try criminal offenses under the ATL having replaced courts mandated by Article 10 of the ATL that had been closed down through a decision rendered by the Supreme Board of Judges and Prosecutors and published in the Official Gazette of 17 February 2015.[1] The second one was the Law of Police Powers No. 6638, a.k.a. homeland security package, of 27 March 2015 that was published in the Official Gazette of 4 April 2015.[2]The de facto authoritarian era thus commenced and the authoritarian process progressed step by step.
Law No. 7145 rendered the state of emergency (SoE) permanent;[3] the SoE had been declared on 20 July 2016 on the grounds of armed conflict that started on 24 July 2015 and the subsequent attempted coup d’état on 15 July 2016 while it was lifted on 19 July 2018. Today, Turkey is going through an authoritarian era characterized by this very SoE regime. The regime was changed through the Constitutional Referendum of 16 April 2017 that was held under the SoE conditions, while this regime has been referred to as the “Turkish-type presidency model” or the “presidential cabinet.” The Venice Commission visited Turkey before the referendum and published its “Rule of Law Checklist” warning authorities that these constitutional amendments would seriously harm the fundamental democratic principle of the separation of powers.[4] The typical characteristic of such regime is that it has an authoritarian government mentality. Prof. Dr. Nilgün Toker identifies this new authoritarian regime as the “regime of uncertainty.”[5]
Under such a regime, the deadlock in the Kurdish issue and the perpetuation of armed conflict have unfortunately been going on since 2015. Turkey continued with its military operations within the country non-stop and extended them so as the cover the north of Iraq, attempted to control certain regions in northern Iraq after Syria while the conflict zone has thus been broadened. The policy of appointing state trustees to municipalities in cities with an overwhelming Kurdish population and the utter disregard for people’s will in local administrations have eradicated even the minimum requirements for local democracy. The Congress of Local and Regional Authorities of the Council of Europe published a report in 2017[6] on these trustee appointments in Turkey, which is blatantly against the European Charter of Local Self-Government, and criticized Turkey. Politicians and elected officials from the HDP (Peoples’ Democratic Party) are still in jail in spite of judgments[7] by the European Court of Human Rights (ECtHR).
The Parliamentary Assembly of the Council of Europe (PACE), too, took action as rights and freedoms in the country were restricted under the SoE regime transgressing the derogation criteria. On 25 April 2017, PACE reopened the political monitoring procedure in respect of Turkey until its concerns were addressed in a satisfactory manner.[8] Yet, the ECtHR’s stand in the face of the magnitude of problems in democracy and human rights in Turkey was a poorly handled case in point. Even the requirements of violation judgments delivered by the European court, having been limited to the cases of Demirtaş and Kavala, could not be met. The fact that the ECtHR, which has been digressing from the principle of rule of law, has constantly been pointing to the Constitutional Court in Turkey in order to avoid hearing cases most clearly reveals the corrosion in the protection of human rights values. On the other hand, the 2 February 2022 interim resolution[9] of the Committee of Ministers of the Council of Europe that it would launch infringement proceedings against Turkey for the non-execution of ECtHR’s Kavala judgment was important for the protection of the human rights system. On 3 February 2022, the Committee of Ministers referred the Kavala v. Turkey case to the ECtHR to determine whether Turkey failed to fulfill its obligation to implement the court’s judgment in this case.[10] It has been observed that the Constitutional Court did not render pro-human rights judgments particularly about the “state’s national security policies” and took on a negative position. Further, the Constitutional Court’s unfavorable position about emergency decree laws revealed that it was not an effective court to protect human rights. Yet, one can argue that some partial annulment judgments by the court in 2019 about emergency decree laws that had been passed into laws after the lifting of the SoE and the maintenance of this position were promising.
Authoritarian regulations in Turkey went on and legal regulations that specifically suffocated the civic space were given weight. For instance, Law No. 7262 on the Prevention of the Financing of the Proliferation of Weapons of Mass Destruction, which is clearly against the Constitution and freedom of association, was adopted in 27 December 2020. Before the adoption of the law a campaign was launched led by NGOs affiliated with the Human Rights Joint Platform (HRJP) and some of the wording could be changed.[11]Law No. 7262, however, amended particularly laws on associations and fundraising (aid collection) while paving the way for the Interior Ministry to keep a firm grip on associations and appointment of state trustees to associations. Such moves, also consolidated by the ATL and the Turkish Penal Code (TPC), not only did scythe rights and freedoms but also consolidated the climate of fear and frustration while legal regulations and practices aiming to smother rights defenders and civil society organizations and to raise even more challenges before them gradually intensified.
Many citizens’ rights were restricted within the scope of ban measures taken in the face of pandemic conditions in 2020. Grave problems emerged because of these restrictive practices. A great majority of the restrictions and bans announced by the government because of the COVID-19 pandemic, which was admitted to be seen in Turkey on 11 March 2020, were implemented through the power vested in Article 11 of Law No. 5442 which had been amended by Law No. 7145 and granted governors SoE powers. Moreover, some powers defined in Law No. 1593 on Public Health were arbitrarily used by governors having their scope expanded.[12] İHD published a special report on the legality of these measures and administrative fines imposed revealing the degree to which de facto SoE powers were abused with a specific focus on firmer restrictions on freedoms of association and expression, most notably the right to defense, as well as attempts to make the pro-security perspective even more dominant and essentially an authoritarian presidency model was consolidated and built.
As if the COVID-19 pandemic and SoE restrictions were not enough, the political power further restricted rights and freedoms by introducing many laws. Law No. 7242 on Amendments to the Enforcement Law, Law No. 7245 on Marketplace and Neighborhood Guards, Law No. 7249 on Amendments to the Profession of Lawyers and Some Laws that introduced a system of multiple bar associations, Law No. 7252 on the Establishment of Digital Platforms, Law No. 7253 on the Regulation of Publications on the Internet further consolidated the authoritarian regime.
The alarmingly escalating repression and control of the political power over the press particularly following the declaration of the state of emergency held out in 2020 too. Restrictions on freedom of expression have further deteriorated by the introduction of amendments to Law No. 7252 on the “Establishment of Digital Platforms Commission and Amendments to Some Laws” and Law No. 7253 on the “Regulation of Publications on the Internet and Combatting Crimes Committed through these Publications.” The rights to freedom of expression and thought have sustained heavy blows. Criminal cases have been brought against numerous persons including journalists, authors, academics and human rights defenders leading to the detention of some, while journals and books were pulled off the shelves as well.
- According to the 2020-2021 Press Freedom report by the Journalists’ Union of Turkey, 44 journalists were deprived of their freedom in various prisons in Turkey as of 2 April 2021.[13] The report also indicated that at least 57 journalists were taken into custody, while 116 investigations were launched into 101 journalists between April 2020 and April 2021.
- According to the 3 May 2021 report of Press in Arrest entitled “Anatomy of Journalist Prosecutions in Turkey”[14] that incorporated data based on monitoring, documentation and reporting of trials against journalists, 356 journalists have stood trial since 2018 revealing the systematic abuse of criminal law measures targeting journalists’ legal activities.
- Turkey has ranked 153rd among 180 countries in the 2020 World Press Freedom Index[15] issued annually by Reporters Without Borders (RSF). The country had ranked 99th in the index in 2002.
An ample number of individuals, including İHD’s Co-Chairperson Eren Keskin, who face hundreds of thousands of liras in fines and tens of years in prison because of their journalistic activities risk imprisonment any given time.
According to data provided by the Ministry of Justice, 10,745 people were prosecuted in 2013 under Articles 6 and 7/2 of the ATL and this figure steadily rose each year only to reach 24,585 in 2017. 2018 statistics also revealed that investigations were initiated into 46,220 persons with 17,077 lawsuits were brought against these persons. Ministry of Justice’s 2020 data show that while 26,225 persons faced investigations under these articles, 6,551 of them stood trial.[16]
Further, the number of prosecuted persons under Article 314/ 2 of the TPC, which is a commonly referred article in such cases, has shown a dramatic increase and amounted to 136,795 in 2017 which was 8,110 in 2013 according to data collected by the Ministry of Justice. The unbundled data of 2018 has not been issued yet. Instead collective data pertaining to “offenses against the constitutional order and the functioning of this order” covering Articles 309 to 316 have been provided. Accordingly, investigations have been initiated into 456,275 persons while civil lawsuits have been brought against 90,197 of them while non-prosecution decisions have been rendered for 149,680. In 2020 211,056 persons faced investigations under the said articles while 33,885 of them stood trial. It is observed that there has been a considerable hike in the number of people charged with membership in a terrorist organization even during the pandemic.
Deputy Mustafa Yeneroğlu, the former chairperson of the Grand National Assembly of Turkey’s (GNAT) Human Rights Inquiry Commission, also presented quite important analyses and data in his September 2021 booklet “Hukuksuzluğun Sıradanlaştırılması” (Commonization of Unlawfulness).[17]
Investigations were initiated into a total of 50,503 persons in 2019 under Article 299 of the TPC that proscribes “insulting the president” along with Article 301 of the TPC that proscribes “insulting Turkishness” both of which incorporate directly prohibitive and punitive provisions as per freedom of expression. Of these, criminal cases were filed against 13,252. In 2020 44,717 persons faced investigations under these articles while 8,924 of them faced prosecution. The high number of lawsuits brought against individuals under insulting the president and Turkishness even during the pandemic shows how pressure and control over the social media further deteriorated.
We, as İHD, can rightfully argue that we fulfilled our responsibilities as part of the civic space by communicating our assessments and recommendations about the government’s Judicial Reform Strategy[18] document and the Human Rights Action Plans.
The will to engage in a joint struggle and to collaborate still persists in spite of all the repression on human rights defenders and the unprecedented attacks on fundamental rights and freedoms as well as principles of fair trial. We carry on the path and continue our struggle having been inspired by the lessons we learnt from the past to protect fundamental rights, human rights defenders and the right to a fair trial along with our achievements.
İHD has always voiced its concerns about the lack of a judicial structure in line with the principle of rule of law in Turkey, serious obstacles before the right to a fair trial, threat of enemy law trials by means of courts, ATL-related restrictions on freedoms of expression, association and assembly by keeping the definition of terrorism quite broad, lack of differentiation between those who resort to violence and who do not, judicial harassment of the political power against social dissidence using the ATL and by means of courts. İHD published special reports on these issues at various times.[19] Particularly the İHD Report on the New Human Rights Action Plan presented to the Ministry of Justice in January 2020 incorporates comprehensive analyses and recommendations for the solution of problems.[20]
While we were conducting preliminary research on this report, which focuses on the modus operandi of the ATL as well as its implementation against political and social dissidence along with human rights defenders, we realized in dismay how fitting was the metaphor “iron cage” in the booklet “Anti-Terrorism Law: Iron Cage” published by the Progressive Lawyers’ Association (Çağdaş Hukukçular Derneği) in 1991.[21] We would, therefore, like to note that this inspired the title of our report.
ATL No. 3713 is still being defined as a special criminal law. Yet, this law has today become a general law as per the stages it has gone through since its introduction in 1991, amendments introduced to the law and its mode of implementation and is being used against all political and social dissidence in its harshest form available. The mode of implementation of the ATL essentially shows how judicial harassment has become a primary policy of repression in Turkey. When we sometimes evaluate the state of human rights talking about the repressive policies of the state, we can safely argue that gross violations of the right to life like summary executions, murders by unknown assailants, enforced disappearances under custody had stood out in the 1980s and 1990s while violations of the right to life did not end, incarceration as a result of judicial harassment using the ATL, hence, the policy of confining individuals in an iron cage has been pursued even more effectively and commonly in the 2000s. Indeed we can readily say that the authorities have been pursuing an intensive policy of incarceration or threat of incarceration against human rights defenders specifically in the 2000s and the most important means of this policy is the ATL.
The resolution for such crisis of justice in Turkey, as the manifestation of the atmosphere brought about by using various laws most notably the ATL, can only be possible by introducing radical amendments to the criminal legislation prominently the TPC, Code of Criminal Procedure (CCP) and the Enforcement Law, by total revision in many laws, and finally by the annulment of the ATL in its entirety. It is imperative that these changes should be done in line with international conventions and covenants Turkey is a party to, judgments and case law of the ECtHR and universal human rights values. In this respect, we are duty bound to emphasize the problematic areas in Turkey’s criminal legislation and present our recommendations for the resolution of these issues as a human rights organization.
[1] https://www.resmigazete.gov.tr/eskiler/2015/02/20150217-3.pdf
[2] https://www5.tbmm.gov.tr/kanunlar/k6638.html
[3] https://ihd.org.tr/en/regarding-law-no-7145-regulating-permanent-state-of-emergency/
[4] https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e
[5] https://birartibir.org/toplumsuz-millet/
[6] https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)021-e
[7] https://hudoc.echr.coe.int/eng?i=001-215340
[8] https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23665&lang=en
[9] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680a56447
[10] https://search.coe.int/directorate_of_communications/Pages/result_details.aspx?ObjectId=0900001680a55b62
[11] https://ihop.org.tr/kitle-imha-silahlarinin-yayilmasinin-finansmaninin-onlenmesine-iliskin-kanun-teklifine-dair-degerlendirme/
[12] For the legality of measures taken within the scope of the country’s response to the COVID-19 pandemic and administrative fines, see the special report of 12 August 2020 drafted by İHD: https://www.ihd.org.tr/wp-content/uploads/2020/08/20200811_IHD-Kovid19TedbirleriRaporu.pdf
[13] https://tgs.org.tr/tgs-press-freedom-report-2020-2021/
[14] https://drive.google.com/file/d/1a5CxiJEI4uLAyMu4isNC_T0oLpzUvo1I/view
[15] https://rsf.org/fr/classement
[16]https://adlisicil.adalet.gov.tr/Resimler/SayfaDokuman/22420211449082020H%C4%B0ZMETE%C3%96ZELK%C4%B0TAP.pdf
[17] https://www.perspektif.online/hukuksuzlugun-siradanlasmasi/
[18] https://ihd.org.tr/en/ihd-report-and-recommendations-on-the-judicial-reform-strategy-document/
[19] This report covers the impact of the ATL on the human rights struggle and the civic space while excludes emergency decree laws. See the report “Emergency Decree Laws and Their Implications on Human Rights” by Hüsnü Öndül drafted in parallel with the present report.
[20] https://ihd.org.tr/en/ihd-report-on-the-new-human-rights-action-plan/
[21] “Terörle Mücadele Yasası: Demir Kafes” available at online bookstores.
For the full report in English, click: OzturkTurkdogan_ATL Report_OMCT_EN